Date: 20000912
Docket: T-1274-99
BETWEEN:
ROGER MISQUADIS, PETER OGDEN, MONA PERRY,
DOROTHY PHIPPS-WALKER AND CHIEF BOB CRAWFORD,
| on his own behalf and on behalf of the |
ARDOCH ALGONQUIN FIRST NATION, and
DARWIN LEWIS, and the
ABORIGINAL COUNCIL OF WINNIPEG INC.
Applicants
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
LEMIEUX J.:
INTRODUCTION
[1] These reasons cover two motions arising in the context of an application for judicial review of a Human Resources Development Canada ("HRDC") program for the delivery of educational and training services to urban and aboriginal communities.
[2] This program is known, under its new current form, as the Aboriginal Human Resources Development Strategy (the "AHRDS"). HRDC implements its program through agreements (known as Aboriginal Human Resources Development Strategy Agreements ("AHRDSAs")) with aboriginal organizations in Canada.
[3] The basis for the challenge by the applicants in this judicial review proceeding is section 15 of the Charter of Rights and Freedoms (the "Charter"). The applicants claim that certain aboriginal communities, both urban and rural, have been excluded from participation in the AHRDSAs. The applicants claim this exclusion breaches the equal benefit without discrimination provision of section 15 of the Charter.
[4] This judicial review proceeding is being case managed and the parties have completed cross-examinations on various affidavits and supplementary affidavits filed in accordance with the Court's schedule.
THE MOTIONS
[5] The Attorney General for Canada made a two-pronged motion. The first prong is for leave to file a further supplementary affidavit of Robert Howsam pursuant to Rule 312 of the Federal Court Rules, 1998 for the limited purpose of explaining HRDC's reaction to Kagita Mikam's refusal to fund a proposal request made to it by Ardoch Algonquin First Nation. The second prong of the Attorney General of Canada's motion seeks the exercise of this Court's discretion to compel the production of the Centre for Aboriginal Human Resources Development ("CAHRD"), the organization in Winnipeg, Manitoba, that won the request for proposal to deliver the urban/off-reserve component of programming to aboriginal peoples in that city.
[6] The applicants made a motion, pursuant to Rule 316 of the Rules authorizing the applicants to call witnesses to testify at the hearing of the judicial review application on a factual issue relating to how urban aboriginal communities are structured in cities such as Winnipeg and Toronto, how they function and organize themselves and how they address issues, make decisions and are accountable.
DISCUSSION
| (a) The Attorney General's motion |
[7] The applicants did not substantively oppose the Attorney General's two-prong motion. They agreed that what the Attorney General for Canada sought was relevant and would be of assistance to the Court in the determination of this case. They said that what the Attorney General for Canada was seeking was intertwined with their own application before the Court to adduce oral evidence at the hearing on the structure of urban aboriginal communities.
[8] I am satisfied that the Attorney General's motion is proper in the circumstances and should be granted.
| (b) The applicant's motion for oral evidence |
[9] As noted, this is a judicial review application which normally proceeds on the basis of filed affidavits, cross-examination and a certified tribunal record.
[10] Rule 316 provides that "on motion, the Court may, in special circumstances, authorize a witness to testify in Court in relation to an issue of fact raised in an application.
[11] The applicant urged two factors representing special circumstances. First, the applicants argued oral testimony was required to sort out likely contradictions in the affidavits filed by the respective parties. Second, counsel for the applicants said the nature of aboriginal communities are oral societies and that the history and politics of aboriginal communities is not found in books or in written materials but passed on through oral tradition.
[12] Counsel for the Attorney General vigorously opposed the applicants' request arguing that the applicants had not satisfied their burden to demonstrate special circumstances.
[13] Counsel for the Attorney General argued the existence of conflicting or potentially conflicting evidence is not sufficient reason and, relying upon MacInnis v. Canada (Attorney General), [1994] 2 F.C. 464 (C.A.), urged upon me the applicants had failed to establish that affidavit evidence was inadequate, not that viva voce evidence is preferable.
[14] I accept the submissions of the Attorney General for Canada. This Court in judicial review proceedings, often sorts out conflicting evidence. This type of evidence in the record cannot be considered a special circumstance.
[15] Further, I am not convinced by the applicants' argument of the necessity of calling four or five witnesses to explain how urban aboriginal communities are organized today and how they make decisions. It seems to me that providing such evidence in affidavit form is perfectly adequate.
[16] While I must refuse the applicants' request to adduce limited oral evidence on the structure of urban aboriginal communities identified in their application, I am of the view that affidavit evidence on how these communities are constituted, how they identify issues, how they inter-relate and how they are represented is an important aspect of this case. I grant the applicants' leave to file limited evidence on how urban aboriginal communities function in Winnipeg, Toronto and Niagara Falls which are the cities identified in the application.
[17] The order accompanying these reasons integrate the results of these motions into the schedule already established by the Court.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
SEPTEMBER 12, 2000